Balancing as process and as discourse
Imagine if you will the familiar setting of a round-table faculty seminar on some question of constitutional rights jurisprudence. Having been quiet for a while, one participant now begins to nod with growing impatience.
‘This all sounds very interesting', she says, ‘but you do of course realize that all of what we have been discussing turns on nothing more than a simple balancing exercise.' She then describes how, in the given problem area, courts either routinely openly balance or weigh; that they balance without saying they do so; or that they should be balancing certain factors in a particular way. Just as inevitable as this first intervention is the response it provokes. That ', another participant says of what has just been presented, ‘is not really balancing'. Reactions now are likely to be mixed. Some of those in attendance will probably think that it is important to settle this preliminary matter first, and to be clear about what this alleged balancing is. Others, though, are likely to feel a sense of loss over a debate that moments earlier had been about real issues - a right to housing, perhaps, or individual liberties in the face of counter-terrorism actions - and that has now turned into a discussion of, what, really? Semantics? Or something of greater salience after all?1. A lens and an object
Familiar debates like these illustrate the predicament the discipline of comparative constitutional law finds itself in today. They are the most intimate, localized manifestations of the general discursive and conceptual environment within which all comparative lawyers must move. But that environment, of course, also constitutes the very terrain of which they are trying to make sense, and this often on a global scale. Here is one account of how the discipline has fared in its attempts to do just that.
Judicial and academic discussions of balancing are commonly triggered by simple language: by the incidence of words such as ‘balancing', ‘weighing', or in some cases ‘proportionality', and their derivations, in
added).
See also Grimm (2007); Cohen-Eliya & Porat (2009), p. 372. They do not, however, discuss the idea that balancing itself might mean different things in different settings. case law and commentary. In standard discussions, what initially makes a judicial opinion a balancing opinion, or what characterizes a court as a balancing court, is simply the occurrence of a peculiar form of legal language. Balancing, in these approaches is, at least initially, simply something judges say they do.[42]Despite this initial reliance on language however, the ultimate concern of these studies is overwhelmingly with balancing as an analytical construct - as something that judges and lawyers are thought to actually do.[43] This preoccupation with the analytics of balancing, or with balancing as process, has a long tradition. It characterized the first balancing debates within the German school of the Interessenjurisprudenz and America's proto-Realist Sociological Jurisprudence, during the early decades of the twentieth century. These authors saw balancing as a ‘process' of adjustment and calibration between opposing social interests,[44] and as a ‘method' of lawfinding.[45] This early choice of emphasis on process is not surprising. After all, the understanding of law in terms of conflicting interests to be weighed and mediated that prompted these writers' interest in balancing in the first place, was itself just one manifestation of a broader intellectual trend that advocated looking at legal institutions in terms of their functions - a trend culminating in Felix Cohen's provocative functionalist credo ‘a thing is what it does'.[46] It is important to note, then, that from the outset, in the work of these early twentieth-century writers, judicial balancing as lens and balancing as object shared the same intellectual foundations.
This relationship between balancing and a functional view of legal institutions is on particularly stark display in the area of comparative legal studies.
In that field, functionalism has long been the focal point for virtually all discussions of method.[47] Using the idea of shared ‘problems' as their starting point, scholars working in the functionalist tradition aim to compare the ‘solutions' found in different legal systems.[48] References to balancing, on this view, are simply manifestations of such solutions to a common problem. Comparative law as a whole even, in the words of one early commentator, amounted to nothing more than a ‘necessary supplement and continuation of the jurisprudence of interests'.[49]This early preoccupation with what balancing does, and with how it does it, remains pervasive. In contemporary studies, balancing is a ‘method of constitutional interpretation',[50] balancing and proportionality are ‘doctrines' relying on certain similar ‘thought processes',[51] ‘proportionality balancing' is an ‘analytical procedure' and a ‘technique of rights adjudication'.[52] And although they are virtually always prompted by language, it is with the implications of this ‘technique' or this ‘process' for decisions in concrete cases, for the institutional position of the judiciary, etc., that studies of balancing and proportionality are ultimately concerned.
2. Conflating process and discourse: three problems of comparative method
In a methodological move that tends to remain unarticulated, investigations of balancing and proportionality commonly conflate these two dimensions of discourse and process. Balancing references are taken as reliable indicators of the presence of a particular underlying analytical process. Once they have served this role, scholarly attention quickly shifts to this purportedly underlying process itself and to its implications, for constitutional practice and theory. Balancing's discursive dimension, as a result, disappears from view. A central claim underlying the case studies in this book is that this conflation of process and discourse and the attendant neglect of balancing's discursive dimension are problematic when used in comparative legal scholarship.
To begin with, such comparative studies face problems when trying to identify what counts as balancing in a foreign system. If that is a difficult enough question in any local setting, as illustrated by the earlier vignette of the faculty debate, these issues are more complex still in any study that crosses borders. For one, foreign judges and lawyers could be using terms that are locally - that is, in their jurisdiction - seen as closely related or even equivalent to ‘real' balancing. But this alternative terminology may be entirely unfamiliar to the outside observer. Examples could include ‘means/ends rationality', a ‘least restrictive means test', or ‘strict scrutiny' in the US context, and Optimierung (‘optimization') or praktische Konkordanz (‘practical concordance') in German law.[53] Also, of course, with the question ofbalancing'snature contestedathome, thereisno reason to assume this will be a settled matter abroad. Just how little can be taken for granted becomes clear when the German Bundesverfassungsgericht is described as having arrived at decisions cast in balancing language ‘without any reaI balancing',[54] or when a US Supreme Court Justice is labelled as ‘a balancer who seldom uses the word'.[55] My point here is simply that the comparative lawyer does not know beforehand whether the language of balancing in the foreign setting is always used in the same basic sense, or whether it refers to a range of different conceptualizations of decision making. Nor does she know whether alternative terms are used as real substitutes for the language of balancing, or whether they have fundamentally different meanings.
The most pressing example in this area has to be the issue of ‘proportionality', a term already encountered in some of the quotations cited earlier. Proportionality is often discussed alongside balancing, both by courts and in academic literature, and is generally seen as similar to, or more precisely as encompassing, balancing as an analytical process.[56] But there are also clear indications of difference, both within and among systems.
Both Canadian and German jurisprudence, for example, show evidence of sustained efforts to distinguish proportionality from what is locally seen by some as a ‘free-wheeling balancing process'.[57] And while the concept of proportionality dominates constitutional practice and theory in Germany, Canada and many other systems, where it counts as one of the overarching general principles of constitutional adjudication, it only surfaces in very specific contexts in US constitutional law, where no such general concept is thought to exist.[58] Given these differences, it is not easy to determine a priori to what extent ‘proportionality' decisions should be compared with ‘balancing' case law.[59]Two further difficulties of comparative method relate to the interpretation of balancing, once identified. First, there is the risk that in trying to construe a stable analytical process of balancing underlying foreign legal materials, comparative scholars may in fact be projecting their own experiences and understandings. That is, they may be too quick to assume that the analytical process underlying foreign references to balancing will be the essentially similar to the analytical process signalled by balancing references in their own legal system. This is the familiar problem of the risk of homeward bias in comparative studies. Common depictions of balancing as a solution to a supposedly ubiquitous counter-majoritarian dilemma, for example, or as an answer to an allegedly inevitable problem of the relativity of rights, should be treated with caution on this ground.
Finally, there is the problem of what could be called the one-dimensionality of meaning. This label refers to the idea that balancing's underlying analytical structure - assuming that such a structure could be identified by the comparative lawyer - is likely to constitute only one aspect of the meaning of the language of balancing in a particular setting. References to balancing instead may stand for much more than simply a process of decision making cast in a particular analytical form. Directing all efforts of inquiry at this analytical structure risks closing off many important questions that could be much more revealing of a foreign legal system.[60]
Through their conflation of process and discourse, then, the dominant approaches to the study of balancing in comparative constitutional law have largely left unexamined a broad range of significant questions concerning one of the most striking trends in global contemporary constitutional law. Furthermore, the risk that comparative scholars, in construing balancing as process, may unwittingly project their domestic experiences onto foreign systems means there is a real danger that answers obtained to the questions that these approaches do ask might be flawed.
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